As part of the Michigan State Law Review Symposium, The Great Lakes Compact, we (Profs. Singel & Fletcher) published a short paper, “Indian Treaties and the Survival of the Great Lakes.” The paper and symposium are now online.
Other authors include without limitation Jim Olson, Austen Parrish, Dan Tarlock, and Mark Squillace. Check it out.
I have been tracking media coverage of the 2007 Consent Decree and have been pleased to see that most reporting on the issue has been balanced and reasonable. It is well documented that media coverage of topics related to American Indians and Indian affairs has been unbalanced and has had impacts on both public perception and policy making. Media coverage of Indian issues is critical because the majority of the general public has little to no direct contact with American Indians or tribal officials and news reports therefore serve as a primary influence on public perceptions of these issues (Jarding, Social Science Journal 2004). Local and regional newspapers around the state, including those in Ludington, Escanaba and Sault Ste. Marie, continue to provide coverage of this topic and their journalists are providing very professional and informative articles.
Furthermore, the recent news reports have given us a sense for the Michigan Department of Natural Resources’ public discussions of the 2007 Consent Decree and I am pleased to see their level of professionalism and balanced presentation of the topic. Unfortunately I have not yet made it to any of the MDNR’s public meetings, but it seems based on the media coverage that the MDNR is doing a stand-up job of leading these important discussions. I hope the MDNR’s productive public discussion on the Consent Decree is a sign that they are willing to work in an intergovernmental fashion with the 1836 tribes to co-manage fish, wildlife and ecosystems in the Ceded Territory in the future.
Lastly, I recently reviewed materials posted on the MUCC website regarding the 2007 Consent Decree and was again, very excited to see balanced and useful information that shows an understanding of treaty law and is respectful to Indian people and tribal resource rights.
It appears we have learned some important lessons from past experiences of treaty negotiations regarding resource use and management in and out of Michigan. If the 1836 tribes, the MDNR, federal agencies and other key partners can work together cooperatively, there is no doubt we can build on respective strengths and improve ecological and socio-economic conditions in the region over time.
From the Ludington Daily News: “Chris Dobyns of the Michigan Attorney General’s office explained that several legal precedents were in the tribes’ favor heading into the negotiation on inland rights. The Canons of Construction, which are long-standing legal guidelines, explain that any ambiguous language in a treaty like “until the land is needed for settlement,” should be construed liberally in favor of tribes. Court rulings against the state of Minnesota and Wisconsin have reinforced this.”
More from the Ludington Daily News: “What will most residents notice once the new tribal consent decree kicks in? Nothing different, according to Little River Band Natural Resources Commission Chair Jimmie Mitchell, who spoke to the Daily News shortly after the agreement was announced.”
From the Battle Creek Enquirer:
WMU helps museum identify human remnants as Native American
Professors from Western Michigan University identified human remains in the Kingman Museum collection to be those of Native Americans on Tuesday.
Anthropologist professors and several students inspected 11 boxes of remains, scalps and cultural artifacts at the museum’s request.
The museum was complying with the Native American Grave Protection and Repatriation Act (NAGPRA), which federally regulates that institutions identify and return certain Native American cultural items to lineal descendants or culturally affiliated Indian tribes.
The Michigan Anishnaabek Cultural Preservation and Repatriation Alliance (MACPRA), which represents the state’s federally recognized and historic Indian tribes, asked that Kingman identify the unknown remains.
The bones came from as nearby as Coldwater Avenue in Battle Creek and as far as the Grand Canyon and Peru. Remains found in Alaska and near Muskegon were deemed to be those of several Native Americans and the others were either unidentifiable or purchased through medical companies.
Here’s the National NAGPRA site.
Here’s the full text of the statute.
Your humble blogger will be giving a talk at the University of Michigan Law School (co-sponsored, I understand, by the U-M NALSA and the Michigan Journal of Race & Law) on November 12, 2007 at 12:20 PM in Room 150 of Hutchins Hall.
My talk will be called, “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law.”
Here’s the blurb I gave the students on this talk:
I have reviewed each of the 144 Indian law-related cert petitions filed in the Supreme Court from the 1986 to 1993 Terms. Tribal interests began losing 75 percent of their cases in the Court starting in 1987, a significantly worse win rate than even convicted criminal petitioners. I argue that the critical factors the Court looks for in deciding whether to grant cert — “circuit splits,” cases of national “importance,” and cases that are not “factbound” — create structural (and yet wholly discretionary) barriers to the vindication of tribal interests in Supreme Court adjudication.
If you want to read the documents I’ve read in this study, check out the Digital Archive of the Papers of Harry A. Blackmun. And bring your docket numbers, because that’s how it’s organized.
From Jerilyn Church:
The Indian Health Care Improvement Act of 2007 (IHCIA), Senate Bill S. 1200, is moving to the floor of the Senate! To ensure Congress understands the strong support of Indian Country for the reauthorization of the Indian Health Care Improvement Act, it is critical that your Senator hears from you now.
As you know, the IHCIA has been favorably reported out of the Senate Committee on Indian Affairs and the Committee on Finance. It is now prepared to go to the floor of the Senate, and we need to make sure that your Senator supports the bill. We expect the bill to reach the Senate floor within 2 weeks! However, in order for the bill to move to the floor it will likely have to overcome a vote for cloture in which 60 Senators must vote to limit the debate on the bill under consideration. The motion for cloture essentially prevents the bill from being filibustered. Once the motion for cloture has been obtained, the bill will then be debated under time constraints and voted upon by the Senate.
Please make your calls now because it is critical that we have the support of 60 Senators for the cloture vote confirmed before Thursday, October 25th.
Please contact your Senator and ask them to:
In order to reach your Senator, you can call the Capitol Switchboard at (202) 224-3121 (this is not a toll-free call). Ask to be connected to your state’s Senator and you will be connected directly to your Senator’s office. Urge your Senator to support the motion for cloture, vote for passage of the bill, and to sign on as a co-sponsor if they have not done so already.
Below is a list of the current 21 Senators who have sponsored or co-sponsored the IHCIA. If your Senators are not on the list, please urge them to sign on as a co-sponsor.
IHCIA, S. 1200 – Sponsor & Co-Sponsor List
Sen. Byron Dorgan – (D – NM) Sponsor
Sen. Max Baucus – (D – MT) Co-sponsor
Sen. Jeff Bingaman – (D – NM) Co-sponsor
Sen. Barbara Boxer – (D – CA) Co-sponsor
Sen. Sherrod Brown – (D – OH) Co-sponsor
Sen. Maria Cantwell – (D – WA) Co-sponsor
Sen. Hillary Rodham Clinton – (D – NY) Co-sponsor
Sen. Thad Cochran – (R – MS) Co-sponsor
Sen. Pete Domenici – (R – NM) Co-sponsor
Sen. Richard Durbin – (D – IL) Co-sponsor
Sen. Daniel Inouye – (D – HI) Co-sponsor
Sen. Tim Johnson – (D – SD) Co-sponsor
Sen. Amy Klobuchar – (D – MN) Co-sponsor
Sen. Carl Levin – (D – MI) Co-sponsor
Sen. Lisa Murkowski – (R – AK) Co-sponsor
Sen. Patty Murray – (D – WA) Co-sponsor
Sen. Barack Obama (D – IL) Co-sponsor
Sen. Harry Reid – (D – NV) Co-sponsor
Sen. Debbie Stabenow – (D – MI) Co-sponsor
Sen. Ted Stevens – (R – AK) Co-sponsor
Sen. Jon Tester – (D-MT) Co-sponsor
If you have any questions or need more information please contact Steve Griggs, Legislative Associate, National Indian Health Board, at sgriggs@nihb.org. Thank you for helping to achieve the reauthorization of the Indian Health Care Improvement Act of 2007.
From Cheryl Harris at UCLA Law:
Colleagues,
I am writing seeking your help and counsel in preventing the disclosure of private data regarding our students that would have little research value but could produce significant harm. Rick Sander, in collaboration with two other law professors, Bill Henderson of Indiana University School of Law and Vik Amar of UC Davis, is seeking to get the California Bar Examiners to release the bar exam scores, as distinct from the the passage rates, for Black and Latino law school graduates. He wants the LSAT scores, race, gender, law school attended, repeater status, and bar exam scores for all those taking the bar exam for the first time between 1997 and 2003—the classes admitted from 1994 to 1999. He furthers wants similar data on Black and Latino graduates from the classes of 2004 and 2005. His argument is that this will help evaluate his prior claims attributing poorer bar passage rates and lower law school performance to affirmative action ( or as he prefers to call it “racial preferences” ) which admit Black and Latino students with lower entering academic credentials into institutions with significantly higher median scores.
I am attaching a National Law Journal op-ed authored by myself and Walter Allen, Professor of Education and Sociology at UCLA, explaining why the Bar Examiners should stick by their original decision to deny him access to this material. The reason they point to is that the test takers provide the background information to the bar examiners for the purpose of determining testing validity—that is whether the test is fair. There is no specific request or consent given to provide access to a group of researchers to test a hypothesis. (I should point out that this disclosure is different from that g iven to LSAC projects like the BPS study or the more recent, After the JD study, in that institutional actors like LSAC who are governing bodies for the administration of evaluations have a distinct responsibility to engage in ongoing evaluation to determine best practices—a different inquiry than verifying a hypothesis.)This privacy concern is compounded by the fact that while his team promises to take precautions in structuring how the data will be reported, given the extremely small numbers of Black students in some of the cohorts, it would be possible for someone to extrapolate from the reported data back to a particular set of people.
There are serious problems with the research model that Sander et. al. propose. While this time the research team includes people who, unlike Sander, are not committed to the mismatch thesis, the reason that the research has twice failed to get National Science Foundation funding is that as the peer review letters disclose (all of this is on Sander’s website), the project is grounded on a set of assumptions—among them that bar scores reflect what is learned in law school—and encumbered by a set of problems that skew the pool to be tested—so-called selection biases.
Rather than addressing these issues, and figure out how to redesign the proposal so that it will meet peer review, Sander has now engaged in a campaign to publicly pressure the California Bar into giving him this data. He first went to the US Civil Rights Commission which is now populated by people like Abigail Thernstrom and Gail Heriot, of the Proposition 209 campaign, who unsurprisingly support his request since his research supports their political opposition to affirmative action. Heriot wrote an article in the Wall Street Journal chastising the committee for giving into political correctness and then Sander and Amar wrote the LA Times op-ed Sept 26 to which Walter and I responded.
Sander has succe eded in getting the Board of Governors of the California Bar to review the initial decision to deny and set the matter for a public hearing on November 8, 2007 before the Board’s Committee on Regulation, Admissions and Discipline Oversight at 2:30 here in Los Angeles. Thus far, there are letters on record supporting the general idea of Sander’s project and urging the release of this data. If the board is to be fully apprised of the issues and take account of the concerns regarding potential harm, it needs to hear from as many as possible. I know that colleagues at Stanford are planning to appear and that students and alum from Stanford are wanting to be heard as well. I will be there also.
I am writing to ask if you would be willing to weigh in. Regardless of whether one thinks that the mismatch hypothesis has been empirically demonstrated or not, the problem here is that the method proposed to test it is deeply flawed and risks putting our students in harm’s wa y, without their even having given consent to such examination.
If you think you might be interested, I would ask that you contact me via email and then perhaps an appropriate response can be coordinated. Excuse the length of the email but I wanted to be as thorough as possible.
The op-ed is here.
Thanks,
Cheryl
Here’s the full text of the bill.
And here’s the link to the testimony in the House Resources Committee on October 3, 2007.
Jim Keedy of Michigan Indian Legal Services testified. As Jim notes in his testimony, MILS has assisted numerous Michigan tribes in their federal recognition efforts, including Pokagon Band, Little Traverse, Little River, Lac Vieux Desert — and Grand Traverse Band, the first tribe recognized under the Federal Acknowledgment Process, 25 C.F.R. Part 83 (then Part 54). MILS is now representing the Grand River Band of Ottawa Indians in their attempt to become federally recognized. Their petition is complete, but as Jim Keedy testified, it will be 15-20 years before the Bureau of Acknowledgment and Research will place their file on active review.
From the Soo Evening News:
Fisheries Chief Kelly Smith of the Michigan Department of Natural Resources indicated the fishing portion of the consent decree involved long and detailed discussion. The state was looking to protect fish stocks while at the same time minimizing the impact on licensed anglers and maintaining the current regulations. The tribes were looking to maximize harvest at peak times of efficiency utilizing spears and nets even during the spawning runs.
The tribes agreed to a permit system with notification requirements and timely harvest reporting. For its part, the state agreed to allow subsistence fishing activities even during spawning periods with certain restrictions designed to protect fish populations.
Walleyes, salmon and steelhead may all be taken by subsistence fishermen utilizing the tribal permit system with a variety of restrictions. They will be limited to somewhere between 5 and 10 percent of the walleye population in any given inland lake depending on acreage. Certain river systems leading into Big and Little Bay de Noc will also be open during the spawning run.
Smith observed the combination of sport anglers and subsistence fishermen should not exceed the 35 percent threshold required to maintain walleye populations on any given lake.
Steelhead and salmon will also be available to subsistence fishermen under the agreement with certain limitations again designed to protect brood stock in key areas.
Tribal members utilizing their own hunting permits will be allowed to harvest up to five deer a year with the season beginning the day after Labor Day and running into January. These permits will limit harvest to two antlered deer with only one allowed to be taken with a firearm before Nov. 1. The agreement also calls for a quiet period from Nov. 1-14, prohibiting the use of firearms for trial deer hunters.
Tribal regulations allow for the harvest of two turkey during the spring hunt and two more during the fall hunt. Migratory bird hunting will be governed by existing federal regulations with most other small game species unaddressed by the consent decree.
Bear hunters operating under tribal regulations will have the same start and end dates as Michigan hunters without any breaks. Tribal members will be entitled to up to 10 percent of the harvest within each bear management unit and that number can increase to 12.5 percent in the future if needed.
Tribal hunters are also guaranteed 10 percent of the state’s elk permits, but that can increase to 20 percent if the state issues less than 101 permits and more than 50.
Permits for both bear and elk will be transferable.
There were a number of questions from the audience following the DNR’s presentation including one member who asked if the tribe should be required to utilize the same equipment and techniques available at the time the treaty was signed.
“The courts have uniformly held that tribal members can use the same benefits of technology as non-tribal members,” answered Dobbins, meaning tribal members do not have any gear restrictions above and beyond the average sportsman.
The following map provides an overview of the 1836 Ceded Territory. I know Little Traverse Bay Bands of Odawa Indians’ GIS and Natural Resource Departments collaborated with the Grand Traverse Band recently to create a more detailed map of the Ceded Territory. I will ask the creators of this more detailed map later this week and request access for the Blog.
Turtle Talk 
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